최병조, 사적자치v.규제주의 – 조합의 임의탈퇴(민법 제716조)에 대한 우리 민법 및 일본 민법의 태도를 중심으로, 로마법과의 비교 – , 2017.06, 서울대학교 법학
In Roman law, a withdrawal (renuntiatio) from partnership (societas) by one of the partners brings about the termination of the partnership in any way. In Korean law, a withdrawal of a partner leaves the partnership as such intact. § 720 Korean Civil Code (KCC) provides, like Japanese law, French law, and German law, that a partner may move for a dissolution of the partnership only if there is just cause. Just cause, to which a misunderstanding of Roman law gave rise since the Byzantine times, is surely deemed to function as a hindrance against an easy dissolution of the partnership. Roman law is fundamentally different in that it is always possible to dissolve a partnership by one of the partners renouncing without any cause whatsoever. With the prerequisite of just cause, Korean law votes for the duration of a partnership if any, and commits the judgement of whether it exists or not to the objective third party outside of the partnership, i.e., the court. It seems ostensibly not so serious as the pertinent provisions of the KCC are only dispositive clauses to which special stipulations of the partners have legal priority. Presumably, the difference between Roman law and the later laws may be explained by the change of the judicial system from the Roman formulary procedure with an iudex as an ad hoc judge selected from the populace to the bureaucratic procedural system with a standing professional judge to whom enough competence for everything and objective fairness are credited ever since. Evidently, it is not wise to decide uniformly on the corporate character of partnerships. For there are various forms of partnership in reality. It seems rather unreasonable to apply such legal rules as the KCC has on the Roman partnerships which are pure contract relations between two partners or among partners of minor number. On the contrary, it is apparently somewhat reasonable to acknowledge a corporate character for the large-scale partnerships like Apartment Rebuilding Societies of today, members of which do not know each other at all or only casually. It is, therefore, a legislative decision to construct partnerships as they are constructed today, different from Roman societas even though using Roman concept and terminology. A decisive step is to take up for partnership property the German concept of Gesamthand (jointly held property) instead of Japanese Miteigentum (co-ownership) which follows the Roman model faithfully (§ 704 KCC). It deserves to be mentioned that the KCC shows in that point a certain degree of consistency. However, the issue of withdrawal from partnership is not necessarily inferred from the issue of corporateness of a partnership. A corporate partnership may permit a partner’s withdrawal without any necessary or just cause. A free withdrawal does not mean that it endangers the concerned partnership in its corporateness and duration. These two issues are irrelevant. For an association with a free entry of members preserves its legal personality, and a Roman societas allows a free withdrawal even though it ceases to exist if a partner does opt for that. After all, it is a legal policy to decide how to regulate the issue of free or restricted withdrawal from partnership. Of course, every legal order differs in that point, frequently seeming similar but in fact different in detail. The basic attitude of Roman law is to allow private autonomy as much as possible and to make the withdrawer (qui renuntiavit) liable for the damages incurred from that act to the rest of the partners. This sanction does correspond to the tendency of today toward the law of obligations more and more resorting to imputation of liability as a more viable method of solving legal problems rather than prescribing more or less apodictic rules which leave less room for private autonomy. On the contrary, the KCC takes it for granted to regulate partnership relations from the viewpoint of the allegedly paternalistic intervention of the court. § 719 KCC provides with ensuing measures. Differences between Roman law and Korean law or Japanese law in terms of withdrawal prove clearly that law is a field where techniques and ideas are necessarily interlaced with each other.
Keywords: partnership, renuntiatio societatis, Roman law, societas, termination of partnership, withdrawal from partnership
최병조, 사적자치v.규제주의 – 조합의 임의탈퇴(민법 제716조)에 대한 우리 민법 및 일본 민법의 태도를 중심으로, 로마법과의 비교 – , 2017.06, 서울대학교 법학
In Roman law, a withdrawal (renuntiatio) from partnership (societas) by one of the partners brings about the termination of the partnership in any way. In Korean law, a withdrawal of a partner leaves the partnership as such intact. § 720 Korean Civil Code (KCC) provides, like Japanese law, French law, and German law, that a partner may move for a dissolution of the partnership only if there is just cause. Just cause, to which a misunderstanding of Roman law gave rise since the Byzantine times, is surely deemed to function as a hindrance against an easy dissolution of the partnership. Roman law is fundamentally different in that it is always possible to dissolve a partnership by one of the partners renouncing without any cause whatsoever. With the prerequisite of just cause, Korean law votes for the duration of a partnership if any, and commits the judgement of whether it exists or not to the objective third party outside of the partnership, i.e., the court. It seems ostensibly not so serious as the pertinent provisions of the KCC are only dispositive clauses to which special stipulations of the partners have legal priority. Presumably, the difference between Roman law and the later laws may be explained by the change of the judicial system from the Roman formulary procedure with an iudex as an ad hoc judge selected from the populace to the bureaucratic procedural system with a standing professional judge to whom enough competence for everything and objective fairness are credited ever since. Evidently, it is not wise to decide uniformly on the corporate character of partnerships. For there are various forms of partnership in reality. It seems rather unreasonable to apply such legal rules as the KCC has on the Roman partnerships which are pure contract relations between two partners or among partners of minor number. On the contrary, it is apparently somewhat reasonable to acknowledge a corporate character for the large-scale partnerships like Apartment Rebuilding Societies of today, members of which do not know each other at all or only casually. It is, therefore, a legislative decision to construct partnerships as they are constructed today, different from Roman societas even though using Roman concept and terminology. A decisive step is to take up for partnership property the German concept of Gesamthand (jointly held property) instead of Japanese Miteigentum (co-ownership) which follows the Roman model faithfully (§ 704 KCC). It deserves to be mentioned that the KCC shows in that point a certain degree of consistency. However, the issue of withdrawal from partnership is not necessarily inferred from the issue of corporateness of a partnership. A corporate partnership may permit a partner’s withdrawal without any necessary or just cause. A free withdrawal does not mean that it endangers the concerned partnership in its corporateness and duration. These two issues are irrelevant. For an association with a free entry of members preserves its legal personality, and a Roman societas allows a free withdrawal even though it ceases to exist if a partner does opt for that. After all, it is a legal policy to decide how to regulate the issue of free or restricted withdrawal from partnership. Of course, every legal order differs in that point, frequently seeming similar but in fact different in detail. The basic attitude of Roman law is to allow private autonomy as much as possible and to make the withdrawer (qui renuntiavit) liable for the damages incurred from that act to the rest of the partners. This sanction does correspond to the tendency of today toward the law of obligations more and more resorting to imputation of liability as a more viable method of solving legal problems rather than prescribing more or less apodictic rules which leave less room for private autonomy. On the contrary, the KCC takes it for granted to regulate partnership relations from the viewpoint of the allegedly paternalistic intervention of the court. § 719 KCC provides with ensuing measures. Differences between Roman law and Korean law or Japanese law in terms of withdrawal prove clearly that law is a field where techniques and ideas are necessarily interlaced with each other.
Keywords: partnership, renuntiatio societatis, Roman law, societas, termination of partnership, withdrawal from partnership